How the Supreme Court Created a Constitutional Case Against the Administrative State

One of the Supreme Court’s first cases in October threatens to unsettle the power of federal agencies to implement laws through regulation.

In the first week of the Supreme Court's upcoming term, the justices will hear argument in a case asserting that a federal statute is unconstitutional because it gives an official in the executive branch insufficiently precise instructions about how to implement the law. Although the case has attracted little attention from progressive groups so far – not one amicus brief was filed in support of the federal law – there is reason to believe that conservative justices may view the case as an opportunity to revitalize a long-moribund constitutional doctrine and, in the process, rework the balance of power in modern government.

Watch Lisa Heinzerling's pre-argument analysis of Gundy v. United States

The Supreme Court has long interpreted the Constitution to require Congress to provide intelligible instructions when it delegates authority to the executive branch to implement legislation. This principle, known as the doctrine of "nondelegation," aims to ensure that Congress does not cede its legislative power to the executive. Only twice in history, however, has the Supreme Court invalidated a federal statute on nondelegation grounds – both times in 1935, at the height of the Court's resistance to President Roosevelt's New Deal legislation.

Since then, the Court has not rejected a single federal statute because the instructions given by Congress to the executive were insufficiently precise. As Justice Scalia once wrote, given the "multifarious" and "highly political" nature of the relevant inquiry, the Court has "almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying that law." A large worry is that unelected judges applying a revitalized nondelegation doctrine would be left to follow their own, personal impulses in drawing the line separating acceptable from unacceptable delegations.

Nevertheless, four of the Court's current justices have in recent years expressed constitutional anxieties about Congress's broad delegations of power to administrative agencies. Justices Alito and Thomas have complained that the Court has gone too far in condoning broad delegations of power to administrative agencies. Chief Justice Roberts has openly lamented the power of administrative agencies and has questioned the practice of deferring to agencies' interpretive judgments. Likewise, as a lower-court judge, Justice Gorsuch also expressed dissatisfaction with the Court's policy of "Chevron" deference, citing the constitutional constraint on delegation as a reason for his uneasiness.

It seems fair to surmise that the Court's conservative justices have been itching for a fight on nondelegation. They've now found one, and it may prove to be just what they've been looking for.

In Gundy v. United States, set to be argued the first week of October, a convicted sex offender argues that the Sex Offender Registration and Notification Act (SORNA) violates the nondelegation doctrine by giving the Attorney General the authority to decide whether the law's registration requirements apply to offenders convicted before the statute was enacted. Failure to register as required under SORNA is a criminal offense, carrying a penalty of up to ten years in prison.

A sticking point during legislative debates was how the law should deal with pre-Act offenders. Congress defined a "sex offender" as "an individual who was convicted of a sex offense," thus apparently including within the Act's requirements individuals who were convicted either before or after the law was passed. Yet Congress also provided that "[t]he Attorney General shall have the authority to specify the applicability of the requirements" of the statute to pre-Act offenders.

These provisions together raised a question: do the Act's registration requirements apply to pre-Act offenders by the force of the Act itself, or do they apply only once the Attorney General specifies that they apply? Under the first interpretation, the statute would present no nondelegation problem, since Congress itself would have made the choice to create criminal liability for pre-Act offenders. Under the second interpretation, however, the Act would appear to give to the Attorney General the power to decide whether to impose registration requirements, backed by criminal penalties, on the 500,000 sex offenders whose convictions pre-dated the Act.

In Reynolds v. United States, decided in 2013, the Court chose the second interpretation. Writing for a lopsided majority, Justice Breyer found that the Act's conferral of authority to determine the Act's "applicability" to pre-Act offenders was "more naturally read as conferring the authority to apply the Act, not the authority to make exceptions" – meaning that the Act's registration requirements did not apply to pre-Act offenders until the Attorney General said they did. Chief Justice Roberts, who at oral argument had asked counsel for the government whether delegating this degree of authority would create a nondelegation problem, joined Justice Breyer's opinion without comment. As did Justices Alito and Thomas.

Justice Scalia dissented, joined by Justice Ginsburg. Justice Scalia saw no reason to interpret the statute in the way the majority did, but he did see a good reason not to: "[I]t is not entirely clear to me that Congress can constitutionally leave it to the Attorney General to decide – with no statutory standard whatever governing his discretion – whether a criminal statute will or will not apply to certain individuals. That seems to me sailing close to the wind with regard to the principle that legislative powers are nondelegable…" Justice Scalia observed that it was thelis Court's "settled policy to avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question." Indeed, the Court has in the past chosen a narrow interpretation over a broad one precisely because it thought the broad interpretation might be inconsistent with the nondelegation principle.

The basic problem in Gundy is that SORNA, as interpreted by the Supreme Court in Reynolds, provides not just imprecise guidance, but no guidance to the Attorney General in deciding whether to apply the law to pre-Act offenders. The government made no bones about this limitless discretion in Reynolds itself; indeed, it used the unconstrained nature of the authority given to the Attorney General to argue against making the application of the statute to pre-Act offenders turn on the Attorney General's action. Under the provision on the Attorney General's authority, the government said, the Attorney General could apply the Act to "every" pre-Act offender or to "some but not all" or could "do nothing at all," and could "change his mind at any given time." Despite these cautions, the Court ruled against the government in Reynolds.

In defending SORNA against the constitutional attack in Gundy, the government now attempts to create a limiting principle for the Attorney General's authority. It argues that "the text and context" of SORNA convey an instruction to the Attorney General to "specify the applicability of SORNA's registration requirements to pre-Act offenders 'to the maximum extent he finds to be feasible.'" In Gundy, the government has thus discovered a limiting principle that it could not locate when it litigated Reynolds. The trouble is that the limiting principle – "to the maximum extent he finds to be feasible" – does not appear in the statute.

By interpreting SORNA to require action from the Attorney General before the law's registration requirements may apply to pre-Act offenders, the Court in Reynolds created the constitutional conflict that Justices Scalia and Ginsburg sought to avoid. In this way, Reynolds gave birth to the constitutional controversy in Gundy.

Unless the Court is willing to overturn its decision in Reynolds – which is unlikely, especially given the recentness of the decision – the Court in Gundy will not be able to wriggle out of the constitutional question posed there. Given the four conservative justices' apparent desire to police nondelegation problems with a firmer hand, one cannot help but wonder whether the legal box they've put themselves in suits them just fine. Add Judge Kavanaugh to the mix, and one may have a solid majority for reworking present understandings of the separation of powers.

If the Court invalidates SORNA as an unconstitutional delegation of legislative authority, the consequences could be gigantic. A reawakened nondelegation doctrine could run like a scythe through the scores of statutes that grant broad authority to administrative agencies. Operating that destructive instrument would be the least politically accountable of all the branches of government.

The Court could try to limit a decision invalidating SORNA, citing such factors as the criminal context; the worrisome power of the Attorney General as both prosecutor and quasi-legislator; and the backward-looking nature of the application of registration requirements to pre-Act offenders. But given that this is the very fight that the conservative justices appear to have been spoiling for, and given that they could have easily avoided it in Reynolds, it seems fair to say that no matter how Gundy comes out, this will not be the Court' last word on nondelegation.

I am grateful to Jonathan Adler for helpful comments on an earlier draft.

Truth is Truth: U.S. Abortion Law In The Global Context

By Risa E. Kaufman & Martha F. Davis

The looming U.S. Supreme Court confirmation fight crystalizes the current battle lines over reproductive rights. For years, abortion opponents have been busy proposing and enacting new federal and state restrictions on abortion access, teeing up the opportunity for the Court to revisit the fundamental right to abortion and the robust constitutional framework protecting core personal liberty interests.

False and misleading information has been a key part of the anti-abortion toolkit. In attacking women’s reproductive rights, abortion opponents increasingly characterize laws regarding abortion access in the United States as far more permissive than the rest of the world. For support, they point to a rudimentary global tally of national laws on abortion and urge policymakers to enact bans and further restrictions on abortion access in order to bring the United States more in step with “international norms” on abortion access.

Our newly published Issue Brief exposes the fundamental flaws in this argument, explaining that international norms on abortion access cannot be portrayed through such nose counting. Abortion opponents’ uncritical reliance on a simplified scorecard is misleading, inaccurate, and ignores important protections for women’s health. Indeed, the abortion opponents’ simplified global tally fails to account for broad exceptions contained in many European abortion laws. And it fails to examine the broader context of access to reproductive health care, including access to contraception, maternal health care, and access to medical information.

For example, the global tally counts Germany as having more restrictive abortion access than the U.S. Yet Germany’s reproductive health laws provide more support for women seeking to avoid or end unintended pregnancies. Unlike the U.S., Germany offers citizens and permanent residents universal health insurance, and provides health care for refugees and undocumented immigrants who are acutely ill, in pain, or pregnant. Germany also subsidizes contraception for women under 20 years of age, and in many instances provides public funding for abortion.

In comparison, as a result of abortion opponents’ efforts, abortion laws adopted by U.S. states are typically part of a larger web of measures to obstruct access to reproductive health care. States such as Texas are making a concerted effort to limit access to abortions, essential family planning services, and other reproductive health care, and refuse to provide comprehensive sexual and reproductive health education.

The misleading global tally ignores the international trend toward liberalization of abortion law, as well. Around the world, there is an irrefutable trend toward expanding the grounds under which abortion is legal.

And the abortion opponents’ global tally ignores the fact that international human rights law recognizes and protects access to safe and legal abortion. International human rights treaties, agreements, and decisions reflect an international norm of liberalizing access to abortion and ensuring access to safe abortion care as central to ensuring women’s autonomy and reproductive health.

International comparisons are most certainly relevant touchstones for domestic policy-making and adjudication, but they are not as simple as checking a box. Accurate analyses examine access to abortion care in light of global practices as well as international human rights law and provide the basis for a more accurate and reliable comparison between the U.S. and its international counterparts.

In an environment where the very existence of truth is questioned and false statements are increasingly pawned off as true, abortion opponents in the United States are using misleading comparative data to undermine women’s fundamental rights and erode the robust constitutional framework that protects abortion access in the United States.

The stakes could not be higher.

Read the Issue Brief here.

Louisiana’s Ongoing Ethical Crisis: Why SCOTUS Should Weigh In On The Case Of Rogers Lacaze

Can a judge sit on a capital murder case when, undisclosed to the defense, that judge was accused of signing the order that released the probable murder weapon to the co-defendant? In the coming weeks, the U.S. Supreme Court will conference Lacaze v. Louisiana, the case which raises this question. The case, in fact, is a perfect vehicle for the U.S. Supreme Court to address when a judge must disclose his personal interests in a given case and recuse himself. Lacaze, who was convicted of first degree murder and sentenced to death in 1995, discovered after trial that his trial judge was laboring under this profound conflict of interest. Instead of recusing himself, Judge Frank Marullo presided over Mr. Lacaze’s capital trial and then campaigned for re-election on the resulting death sentence. What makes this case even more urgently in need of correction is that the Supreme Court already sent it back to the Louisiana Supreme Court, which, so far, got it wrong twice.

The startling facts of the case are largely uncontested: Rogers Lacaze and New Orleans Police Officer Antoinette Frank were charged with a triple homicide that was committed with a 9mm gun. The victims in the case were another New Orleans police officer and two civilians. During the investigation, the New Orleans Police Department (NOPD) found that Officer Antoinette Frank had received a 9mm gun from their own property and evidence room. The gun was released from evidence by an order bearing Judge Marullo’s signature. The NOPD’s Public Integrity Unit (PIU) opened an investigation and interviewed Judge Marullo.  The officer in charge of the gun vault insisted that he personally brought the order to Judge Marullo’s chambers for it to be signed.  Judge Marullo said his signature was forged.

Three and a half weeks later, Judge Marullo was assigned to adjudicate Mr. Lacaze’s case. Two weeks after being assigned the case, Judge Marullo was contacted again by the NOPD for a taped version of his statement. Reflecting his knowledge of the conflict, Judge Marullo refused to speak further with the investigators.  But he failed to recuse himself from the high-profile case, or disclose to Mr. Lacaze’s attorneys that he was questioned by police. Rogers Lacaze testified at trial that he did not participate in the homicide, but the Antoinette Frank told him before the crime that she was getting a 9mm gun from the police evidence room.

Judge Marullo left the defense ignorant of three key facts: (1) that there was an active investigation that confirmed the defendant’s account of how the 9mm gun was obtained by his codefendant; (2) that he had been approached as a witness in the investigation; (3) that Judge Marullo himself was alleged to have released the weapon that was likely used to murder a police officer and two civilians.

The Due Process Clause of the U.S. Constitution guarantees defendants the right to a fair and impartial judge. The U.S. Supreme Court has repeatedly maintained that due process requires recusal whenever there is an unconstitutional potential or probability of bias.

In the jurisprudence of judicial recusal, the relevant inquiry from Caperton v. A.T. Massey Coal Co. (2009) is whether the average judge is likely to be neutral in the case. Moreover, the Court has found that the failure to disclose a potential conflict also creates an appearance of bias, which alone is impermissible. Additionally, the Model Code of Judicial Conduct, adopted by most courts, insists that judges have an affirmative obligation to disclose any facts that might lead to their recusal.

In Mr. Lacaze’s case, the Louisiana Supreme Court initially dismissed his recusal challenge, finding that Judge Marullo had done nothing wrong when he failed to disclose his connection to the likely murder weapon. Last year, the U.S. Supreme Court granted Mr. Lacaze’s writ, vacated the decision and remanded it for further consideration by the Louisiana Supreme Court. But, having already been overturned by the U.S. Supreme Court, the Louisiana Supreme Court dismissed Mr. Lacaze’s recusal challenge again, which is why the case is now back at the U.S. Supreme Court, again.

While well-established constitutional due process requirements make clear that Judge Marullo should have recused himself, the Louisiana Supreme Court adopted a novel and onerous requirement for judicial recusal: proof that the judge was specifically biased against a particular party. Then, barely acknowledging the earlier remand order, the Louisiana court rejected Petitioner’s challenge.

This directly conflicts with U.S. Supreme Court jurisprudence. There is no need for this kind of specific bias in order for there to be impermissible bias that requires recusal. The facts of the case are uncontested, so the U.S. Supreme Court must now, for the second time, rebuke the Louisiana Supreme Court in order to force the state to adhere to constitutional standards in criminal law.

The Court should grant cert to make clear that the Due Process Clause does not require a showing of specific bias against a party to mandate judicial recusal and to vindicate Mr. Lacaze’s right to due process in his death penalty case.

In fact, the Court ought to consider the swifter route of summarily reversing the Louisiana Supreme Court’s decision for blatantly misapplying the Supreme Court’s judicial recusal standard. The lower court required the Petitioner to show a “probability of actual bias,” while this Court’s prior decisions make clear that even a “potential for bias” can give rise to a due process violation.

Fair and impartial judges are the foundation stone of fair courts, fair trials, and just results. There’s too much at stake in Mr. Lacaze’s case for the U.S. Supreme Court not to intervene.

Lawrence J. Fox is counsel of record on an amicus brief from the Ethics Bureau at Yale in support of Petitioner Lacaze. 

President Trump: Challenging Core First Amendment Principles

Many, including most recently some 350 newspaper editorial boards, have bemoaned President Donald Trump’s attacks on freedoms of speech and press. But like much else during this presidency, these attacks tend to be discussed on a news cycle-basis. There is a larger picture here, and only by seeing it can we get a true sense of what is actually at stake. The Trump Administration is not just at war with the institutional press. In a much broader sense, President Trump has challenged a number of core principles associated with the First Amendment. These principles, and the values they support, are not partisan. They benefit us all, and so threats against them ought to concern us all.

A free press is not a threat to democracy, but a condition for sustaining it. 

The President’s constant refrain that the press is “the enemy of the people” and the “opposition party” is belied by nothing short of the history of journalism itself. Of course the press makes erroneous statements and sometimes abuses its own powers. We ought to carefully consider the balance between press freedoms and reputational harms. However, in a case decided in 1931, which invalidated a prior restraint against newspapers, the Supreme Court reminded us that “to the press alone the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression.” It also credited the press with helping transform the United States from a “sickly Confederation” into a “free and independent nation.” As the size and complexity of government have increased, the Court presciently observed, “the opportunities for malfeasance and corruption have multiplied” and “the danger of its protection by unfaithful officials” has shown “the primary need of a vigilant and courageous press.” Now more than ever, our nation needs a “vigilant and courageous press.”

Censorial power is in the people over the government, not in the government over the people.

James Madison, the architect of the First Amendment, uttered these words in a debate concerning press censorship. Madison had railed against the Sedition Act, a 1798 federal law which imposed criminal penalties for publishing or communicating statements about the president or the federal government that would bring either into contempt or disrepute, or incite hatred toward them. Although some were certain that the Act was unconstitutional, it was not until 1964 that the Supreme Court expressly repudiated the crime of sedition. It observed that the “central meaning of the First Amendment” is that the people must be free to criticize their government and officials. President Trump has sought to resurrect sedition. He has rewarded those who praise him and sought to punish his critics. Whether it takes the form of revoking the security clearances of former intelligence officials, or blocking critics from his Twitter timeline, this is a censorial abuse of executive power. It matters not whether the former official has a legal right to the clearance or the Twitter user has a right to comment. There is a corollary First Amendment principle at work, namely that when the government makes a benefit available it cannot deny or condition its continued enjoyment upon the suppression of official criticism. If the people are to govern, punishment for sedition cannot stand.

No official can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.

The President’s attacks on NFL players who refuse to stand at attention, hand over heart, during the National Anthem challenges this core First Amendment principle. As Justice Jackson wrote for the Supreme Court in 1938, “struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men.” In one of the most iconic passages ever written about freedom of speech Jackson observed: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Insisting that every player   communicate the same sentiment, in the same manner, at a public sporting event – or be fired – is precisely the sort of governmental coercion the “fixed star” principle prohibits.

Speech on matters of public concern – including by public employees – must remain free.

The Trump Administration has apparently insisted that some campaign officials and top presidential advisors sign non-disclosure agreements that prohibit them from disparaging the president or his businesses, as well as others in the administration. In all likelihood, such agreements are unenforceable against executive employees. Public employees do not relinquish their free speech rights when they accept positions within government. Indeed, as the Supreme Court has recognized, these employees are often in the best position to comment upon the administration of government and other matters of public concern. To be sure, government employers are entitled to insist on secrecy with regard to national security and other sensitive matters. But the administration’s non-disclosure agreements appear to extend well beyond such concerns. The purpose seems to be, once again, to silence potential critics of the administration. As the Supreme Court has noted, “statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors.”

As the president continues to speak out against, intimidate, and silence his critics, we ought to keep these core First Amendment principles in mind. As the Supreme Court recognized, the principles were formed “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” During the first half of his first term, the President has posed some serious challenges to that national commitment. It is up to all of us to respond.

Making Sense of the Chaotic West Virginia Supreme Court Impeachment

This blog was originally posted in Facing South.

For the second time this year, a state legislature is contemplating the impeachment of an entire state supreme court: The West Virginia Supreme Court faces trial next week in the Republican-controlled state Senate.

The impeachment charges — which include lavish spending on renovations and excessive salaries for semi-retired judges — are sure to anger legislators who grappled with an $11 million budget shortfall last year. The most serious allegations involve Republican Justice Allen Loughry, who in addition to overspending and taking home office furniture was charged with lying to federal investigators.

Ironically enough, Loughry penned a book about political corruption in the state, in which he wrote, "Of all the criminal politicians in West Virginia, the group that shatters the confidence of the people the most is a corrupt judiciary."

As news spread of the justices' spending spree, legislators toured the court on Aug. 7. House leaders surprised their Democratic colleagues the next day by announcing that they would vote on impeaching not just Loughry but the entire court.

Before two justices recently resigned, a majority of the justices were Democrats. Though West Virginia switched to nonpartisan judicial elections in 2016, most of the justices were elected in partisan races. While Democratic lawmakers have said the case for Loughry's impeachment was clear, some believe the charges related to overspending are not impeachable.

So how did Republican lawmakers come to embrace such an extreme action?

The proceedings in West Virginia are playing out against a broader trend of conservative politicians targeting judges who rule against them. Pennsylvania's GOP-controlled legislature also considered impeaching the entire state Supreme Court this year for striking down a gerrymandered election map. In North Carolina, Republican leaders have lashed out at the courts for the same reason, passed laws changing how judges are chosen, and threatened impeachment. Meanwhile, President Trump and Attorney General Jeff Sessions have questioned the very legitimacy of federal judges who ruled against them.

Amid this national atmosphere of judicial intimidation, the West Virginia court's spending scandal presented Republican legislative leaders with an opportunity for radical change.

Democratic Justice Menus Ketchum left the court on July 11, a few weeks before pleading guilty to a federal fraud charge. Justice Robin Davis, also a Democrat, retired this week after the state House voted to bring impeachment charges. She did so in time to let voters choose her successor rather than having Republican Gov. Jim Justice — a billionaire whose coal companies have a history of worker safety violations — appoint her replacement in case of impeachment.

Democratic legislators accused Republican leaders of intentionally delaying impeachment proceedings until after the Aug. 14 deadline for having voters choose new justices in this year's election. If the three remaining justices are removed now, the governor would appoint replacements to serve until 2020.

Big Money shaped the court

Long before this latest scandal, the West Virginia Supreme Court was targeted by conservative special interests seeking to influence its makeup. That spending itself has led to ethics problems, such as when coal mogul Don Blankenship spent $3 million in 2004 to unseat a member of the court and elect Justice Brent Benjamin, who went on to vote to overturn a $50 million verdict against Blankenship's company. The U.S. Supreme Court ultimately overturned that decision due to the glaring conflict of interest.

The controversy over Blankenship's money led legislators to establish a public financing program for judicial elections. However, that program was challenged in 2016, when the Republican State Leadership Committee (RSLC) dumped millions of dollars into a West Virginia Supreme Court election. The RSLC, the state Chamber of Commerce, and other big business interests spent millions to defeat Justice Benjamin — whose re-election campaign was funded by public financing, not Blankenship — and elect Justice Beth Walker.

As this corporate money poured into its elections, the West Virginia Supreme Court also found itself in the crosshairs of another corporate-funded group dedicated to making it harder for injured people to file lawsuits.

For years, West Virginia or parts of it made the American Tort Reform Association's (ATRA) annual list of "Judicial Hellholes," supposedly places where "judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits." The group gets funding from the Koch brothers, organizes "astroturf" groups that work to create the impression of grassroots support for tort reform, and has been a major funder of the RSLC. The ATRA recently singled out Davis for what it suggested were conflicts of interest.

The so-called "tort reform" laws promoted by ATRA have a disproportionate impact on the most severely injured plaintiffs. Such laws can be particularly harmful in a state like West Virginia. "With regulatory oversight of mining and other industries so weakened, the right to bring reckless corporations to court is more precious than ever," as the Center for Justice & Democracy has pointed out.

Even though ATRA's list of "hellholes" is based on an unscientific survey of corporate lawyers, Republican legislators used it to justify new tort reform laws that limit lawsuits by injured people. In its most recent report, ATRA praised West Virginia's tort reform laws but said the state's high court "remains a concern and requires a watchful eye."

If any justices are impeached next week and the governor appoints their replacements, the result would likely be a court that the ATRA and the RSLC would prefer: one that puts the interests of corporations over those of ordinary West Virginians.

3D Printed Firearms and Brett Kavanaugh’s Misguided Approach to the Second Amendment

Supreme Court nominee Brett Kavanaugh has crafted a distinctive approach to Second Amendment issues. In his view, history is everything, and courts deciding Second Amendment cases should pay no attention to the effects that gun laws have in the real world we live in today. The current controversy over 3D printed firearms provides a striking example of the flaws in Kavanaugh’s approach.

Kavanaugh’s Hyper-Originalist Theory

Ten years ago, the Supreme Court decided that the Second Amendment protects a right to have guns for purposes unrelated to service in a militia. The Court did not provide clear guidance about how judges should go about deciding which gun control laws violate the right to keep and bear arms.

Since that time, lower courts across the nation have faced a wave of Second Amendment claims about a wide variety of gun laws. The vast majority of judges have adopted a two-step analysis. They begin by asking whether a challenged law restricts activity that Americans at the time of the Second Amendment’s ratification, in 1791, would have regarded as being covered by the right to keep and bear arms. If the answer to that historical inquiry is positive or inconclusive, courts move on to evaluate whether the challenged law serves government interests sufficiently important to justify the restrictions imposed by the law. This approach gives due weight to historical evidence about the Second Amendment’s meaning, but also appropriately considers modern realities like the purposes and effects of the gun laws that legislatures have chosen to enact.

Brett Kavanaugh is one of a small number of judges who oppose that standard approach. In a dissent from a D.C. Circuit ruling in 2011, Kavanaugh argued that constitutional text, history, and tradition should be the only relevant considerations for courts assessing Second Amendment claims. He disavowed the use of any of the familiar constitutional tests, like strict scrutiny or intermediate scrutiny, on the ground that those tests improperly take into account the strength of the government interests served by the challenged law.

The text of the Second Amendment does not say anything about background checks, concealed weapon licensing, or any other specific type of gun regulation, so the text is of little use in resolving the sorts of detailed questions that courts face in Second Amendment cases today. With no constitutional text that is dispositive, Kavanaugh’s approach essentially boils down to being entirely about history and tradition. According to Kavanaugh, looking at history and tradition means assessing what people thought about the Second Amendment at the time of its ratification and in the next few decades after that. In short, Kavanaugh believes Second Amendment cases should be decided entirely on the basis of evidence about what people thought several hundred years ago, with no consideration given to the role that firearms play in the modern world and the reasons why legislatures have chosen to put some restraints on firearm acquisition and use.

The Emptiness of Kavanaugh’s Theory

Even if Kavanaugh’s method of constitutional interpretation was theoretically appealing, it is not feasible for judges to actually use it to decide any cases. Kavanaugh admits that analyzing the history and tradition of gun laws and gun rights in America “does not always yield easy answers.” But the truth is that history and tradition alone virtually never yield any real answers to anything that courts must decide in Second Amendment cases. The issues that courts face today just didn’t exist two hundred years ago in a world where everything – firearms technology, regulatory approaches, law enforcement, and so on – was so different.

I’ve discussed some examples of this problem in the past, but a great new example can be found in the controversy over whether the government can stop people from posting information on the internet about how to make plastic firearms with 3D printers. On this blog, Professor Timothy Zick recently provided a cogent analysis of the key constitutional questions surrounding the issue. He predicted that Second Amendment claims about a right to post the disputed information would fail because “under any standard of scrutiny, the limited restriction on access to 3D code would likely be outweighed by the government’s law enforcement and safety interests.”

He’s correct, or at least he’s correct that almost all judges would reach that conclusion. But Brett Kavanaugh is in the tiny minority of judges who say that even the most urgent and compelling law enforcement and safety interests are irrelevant in a Second Amendment case. No matter how strong the government’s interests may be, Kavanaugh’s theory would require a court to take a purely historical approach to deciding the Second Amendment issues.

Did Americans in 1791 think that the right to keep and bear arms included a right to use the internet to distribute code for programming a 3D printer to make a firearm? Just asking the question is enough to reveal the absurdity of trying to use a purely historical approach to decide the complex and difficult constitutional issues that arise in the modern world. History certainly should be an important element of constitutional analysis, but attempting to make it the sole consideration is hopelessly impractical.